Yeap and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Yeap and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1155 (21 May 2024)
Division:GENERAL DIVISION
File Number: 2024/2685
Re:Lynette Yeap
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 May 2024
Place:Brisbane

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application under review for lack of jurisdiction.
...........................[SGD]..........................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE- section 501(1) refusal of Return (Residence) (Class BB Subclass 155) visa- where the visa applicant is offshore- where the review application is lodged onshore by another person – does the Tribunal have jurisdiction – consideration and application of the Migration Act 1958 (Cth)- Tribunal finding that it does not have jurisdiction - application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 May 2024

Mr Hock Guan Yeap (‘the Applicant’) is a 41-year-old national of Malaysia. After a period of time in Australia, the Applicant departed in May 2017 to return to Malaysia. He has remained in Malaysia since that time.
On 3 June 2018, the Applicant made an application for a Return (Residence) (Class BB Subclass 155) visa (‘the Visa’). This application was made from Malaysia.
On 22 January 2024, the Applicant was issued a Notice of Intention to Consider Refusal (‘NOICR’) of the Visa by the Minister for Immigration, Citizenship and Multicultural Affairs’ (‘the Respondent’) Department. The Applicant failed to respond to the NOICR within the stipulated time.
On 8 April 2024, a delegate of the Respondent refused the Applicant’s application for the Visa under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’) on the basis the Applicant failed to satisfy the character test pursuant to sections 501(6) and 501(7) of the Act. For the purposes of these Reasons the delegate’s decision dated 8 April 2024 will be referred to as the ‘Decision Under Review’.
The Applicant was notified of the Decision Under Review on 11 April 2024 by email. Under the heading ‘Review rights’ on the notification letter was the following:
‘You have a parent, Ms Lynette Ai Mooi Leong who is an Australian citizen.
The above-mentioned parent can apply to have the decision to refuse to grant you a Return (Residence) (Class BB) visa reviewed by the Administrative Appeals Tribunal (AAT). If they wish to have the decision reviewed, they must lodge an application for review with the AAT within twenty-eight (28) days after the day on which you are taken to have received this letter.’
The Applicant was also notified in the notification letter of 11 April 2024 that as a result of the delegate’s decision dated 8 April 2024: (1) any other visa held by the Applicant or
(2) any other visa application made by the Applicant which has been neither granted or refused (other than a protection visa) is taken to have been cancelled by operation of section 501F(3) of the Act.
Mrs Lynette Yeap (‘the Applicant’s mother’) followed the procedure outlined in the Respondent’s letter dated 11 April 2024, the relevant portion of which is quoted above at [5]. On 1 May 2024, she lodged with this Tribunal a review application appealing the delegate’s abovementioned decision made on 8 April 2024 (‘the review application’).
The Tribunal held an interlocutory hearing by telephone on 13 May 2024 to receive submissions from the parties on the question of whether this Tribunal had (or did not have) jurisdiction to entertain and determine the review application lodged by the Applicant’s mother on 1 May 2024. The Applicant appeared at this initial hearing by his mother. This initial interlocutory hearing was adjourned to allow for the filing of any written submissions.
The Respondent filed submissions dated 20 May 2024[1] a copy of which were provided to the Applicant’s mother. The Tribunal then resumed the interlocutory hearing by telephone on 21 May 2024 during which oral submissions were received from both sides.
[1] These submissions will comprise ‘Exhibit 1’ to this proceeding.
LEGISLATIVE FRAMEWORK
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act’) states that an application can only be made to the Tribunal for review of a decision if the enactment under which the decision is made provides that an application for review may be made for such a decision.
Under subsection 25(3) of the AAT Act, where an enactment makes provision for an application to be made to the Tribunal, that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
Paragraph 500(1)(b) of the Act provides for applications to be made to the Tribunal for review of decisions made by a delegate of the Minister in exercising the power conferred by section 501 of the Act.
However, subsection 500(3) of the Act provides:
‘A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.’
Part-7 reviewable decisions are defined under section 411 of the Act. The Decision Under Review does not concern an application for a Protection visa, and therefore an assessment of Part-7 reviewable decisions of the Act is unnecessary.
Part-5 reviewable decisions are defined under section 338 of the Act. Relevantly, subsection 338(2) of the Act provides:
Definition of Part 5-reviewable decision
…
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
The Tribunal notes that an applicant may be in or outside Australia (but not in immigration clearance) at the time of the grant of the Visa[2] and that the Visa is a permanent visa.[3] The Tribunal further notes that the Applicant had applied for the Visa while he was out of the migration zone on 3 June 2018 and has continued to remained offshore at the time of the delegate’s decision on 8 April 2024 to refuse him the Visa.
[2] Migration Regulations 1994 (Cth) regulation 155.411.
[3] Migration Regulations 1994 (Cth) regulation 155.511.
The Tribunal is satisfied that the Decision Under Review, were it not a decision under section 501 of the Act, would meet the definition of Part-5 reviewable decision under
section 338(2) of the Act. For completeness, the Tribunal is satisfied that the Decision Under Review would not meet the requirements of any other subsections of section 338 of the Act.
Section 347 of the Act provides the requirements for an application for review of
Part-5 reviewable decisions:
‘Application for review of Part 5-reviewable decisions
2An application for review may only be made by:
if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--the non-citizen who is the subject of that decision; or
…
3If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.’
(Emphasis added)
CONSIDERATION
The Tribunal is satisfied that a decision by a delegate of the Respondent to refuse a visa pursuant to section 501(1) of the Act is capable of review by this Tribunal.
The Tribunal is further satisfied that pursuant to subsection 347(2) of the Act only the Applicant himself, as the non-citizen who is the subject of that decision, is entitled to apply for review of the Decision Under Review to this Tribunal.
Furthermore, subsection 347(3) of the Act provides that for a Part 5-reviewable decision covered by subsection 338(2) of the Act to be reviewable in this Tribunal, the Applicant must be physically present in the migration zone at the time of lodging the review application.
The evidence before the Tribunal is that the Applicant has been continuously offshore since departing Australia in May 2017. As the Applicant remains offshore, he is unable to satisfy sections 347(2) and (3) of the Act, and therefore he has not made a valid application for review of the Decision Under Review.
The Tribunal is satisfied that it does not have jurisdiction to receive, conduct and determine the review application filed by the Applicant’s mother on 1 May 2024.
DECISION
Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application under review for lack of jurisdiction.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............[SGD]….....
Associate
Dated: 21 May 2024

Dates of hearing:

13 and 21 May 2024

Advocate for the Applicant:

Mrs Lynette Yeap (Applicant's mother)

Solicitor for the Respondent:

Ms Emma Letcher-Boldt (Lawyer)

Clayton Utz Lawyers

[2024] AATA 1155

21 May 2024

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Dates of hearing:	13 and 21 May 2024
Advocate for the Applicant:	Mrs Lynette Yeap (Applicant's mother)
Solicitor for the Respondent:	Ms Emma Letcher-Boldt (Lawyer)
Clayton Utz Lawyers